New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2004-032-048, Claim No. 104288, Motion No. M-67862


Defendant's motion to dismiss this claim is denied. Where a prison inmate was allegedly placed in a double cell bunk in violation of DOCS regulations, his claim is for wrongful confinement and it accrued on the date that he was removed and placed in a single cell.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Bernard Thomas, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 16, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The claim in this action, which was filed on May 16, 2001 and served on June 12, 2001, alleges that the State failed to follow its own regulations with respect to screening for housing assignments, with the result that claimant was improperly and harmfully placed in a double-bunk cell at Upstate Correctional Facility.

Claimant alleges that while he was incarcerated on Rikers Island, awaiting transfer to the State prison system, he was sexually assaulted by a medical staff member at that facility. He began receiving psychiatric treatment to help him deal with the effects of that assault. When claimant entered the State system in April 1999, he informed officials at the admissions process about the assault and the ongoing treatment. He does not affirmatively so state, but apparently he was placed in a single cell upon his admission to a State institution. In June 2000, claimant was found guilty of a disciplinary infraction and was sentenced to Special Housing Unit. He was transferred to Upstate Correctional Facility to serve this sentence and, according to claimant, he was not properly screened at this facility and, as a result, was placed into a double cell. He contends that this placement was in violation of 7 NYCRR §1701.5. 4(i), which prohibits placing an inmate who is victim prone or who has suffered sexual abuse into a double-bunk cell. Despite numerous complaints and grievances commenced by both claimant and his cellmate, whom he states was a homosexual, claimant was not moved to a single cell until February 20, 2001, shortly after he had commenced an Article 78 proceeding against the Department of Correctional Services (DOCS).

On April 23, 2001, claimant served on the Attorney General a notice of intention to file a claim, asserting that the claim accrued on February 27, 2001 (Resnick affirmation, Exhibit B). When the claim was subsequently served, defendant interposed an answer that contained, as its third affirmative defense, the allegation that the claim was untimely "in that neither the claim nor a notice of intention to file a claim was served within ninety days of the accrual of the claim as required by Court of Claims Act §§10(3) and 11."

The Court takes notice that April 23, 2001 is less than sixty days after February 27, 2001 and only slightly more than sixty days after February 20, 2001. If either of these dates was the date of accrual, the notice of intention was timely and the claim was filed within two years of the date of accrual. Defendant, however, has moved for an order dismissing the claim on the ground that it is untimely.

Counsel for defendant argues that on either date in February 2001,[1] claimant was no longer housed in a double-bunk cell at Upstate Correctional Facility. In fact, he had been moved to Southport Correctional Facility and placed in a single cell (Resnick affirmation, ¶4). Defendant contends that because a claim arises when the act complained of or injury occurs and when claimant's damages become "reasonably ascertainable", any cause of action resulting from the allegedly improper cell assignment accrued "on the date he [claimant] was placed in the double cell, i.e., July 12, 2000, not on the date he was transferred to another facility" (id., ¶6).

Claimant's opposition papers do not challenge defendant's assertion that the claim accrued in July 2000 but address the factors set forth in section 10(6) of the Court of Claims Act, which permits litigants to file an untimely claim in certain circumstances. In response, counsel for defendant sent a letter noting that if claimant was seeking to move for permission to file a late claim, he incorrectly omitted a notice of motion and failed to include a proposed claim, as is required by the statute. Claimant then stated in a letter that he was not moving for permission to late file but merely "explaining to . . . the court why my claim was late, also to let the court know that I do have a claim and it has merit to it."[2]

In his opposition papers (Thomas notice of opposition,¶4) and his subsequent letter, claimant makes the fallacious argument that because the Court accepted his claim and then took no adverse action after receiving the answer containing defendant's affirmative defenses, this claim has proceeded to the discovery stage and the motion to dismiss is improper. A motion to dismiss may be made at any time. Further, when a defendant's answer contains affirmative defenses, the Court does not make an implicit ruling on the validity of those defenses by accepting the answer. Instead, the burden is on claimant to test the validity of a defense. A claimant may simply accept the knowledge that a defense may be raised and plan his/her case accordingly; move for a more particular statement if the allegations are confused or unclear (CPLR 3024 [a]); serve a demand for a bill of particulars with respect to the defense (CPLR 3041); or move to dismiss or strike a defense on the ground that it "is not stated or has no merit" (CPLR 3211 [b]) (Winter v Leigh-Mannell, 51 AD2d 1012 [2d Dept 1976]).

Counsel for defendant is mistaken about the date of accrual of claimant's cause of action. Accepting, for the purposes of this motion, that claimant's allegations are true and that the injury he suffered is one that can give rise to a claim for money damages, his claim accrued on February 20, 2001, when he was removed from the double-bunk cell at Upstate Correctional Facility. As defense counsel even observes in her affirmation, a claim accrues for purposes of the Court of Claims Act "when claimant's damages become ‘reasonably ascertainable.'" It has also been held that "all of the facts necessary to the cause of action" must have occurred before a party is entitled to relief (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). What is necessary, therefore, is to determine the nature of claimant's asserted cause of action in order to determine its date of accrual.
In determining the applicable statute of limitations, the nature or substance of the action is the test, rather than the form or prayer for relief. In other words, the gravamen or essence of the cause of action determines the applicable statute of limitations.
(2ACarmody-Wait 2d § 13:36.)

The gravamen of claimant's cause of action is a claim for wrongful confinement, or false imprisonment in a prison setting. This cause of action, which has been described as a "species" of the tort of false imprisonment (Sealey v State of New York, 2001 WL 1691983 [Ct Cl 2001]; Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), most frequently arises when a prison inmate is found guilty of a disciplinary infraction and winds up being confined in a way that is more restrictive than normal (e.g., keeplock, Special Housing Unit) longer than the length of the sentence. Wrongful confinement, however, has been held to apply to other situations as well: where the disciplinary proceeding and subsequent confinement to keeplock resulted from a mail clerk's violation of a regulation requiring supervisory permission before opening certain types of inmate mail (Craft v State of New York, 189 Misc 2d 661 [Ct Cl 2001]; where a State-ready inmate alleged that excessive time spent in a county facility directly resulted in precluding him from shortening his period of incarceration or receiving certain other benefits to which he would otherwise have been entitled (Ban v State of New York, 187 Misc 2d 905, 908 [Ct Cl 2001]; where an inmate was placed in a SHU unit and subjected to SHU restrictions because no other space was available (Sealey v State of New York, supra); and where a prisoner was confined to a correctional facility rather than under parole supervision as directed by a court (Bratton v State of New York, UID #2003-015-366, Claim No. 107763, Motion Nos. M-67330, CM-67462, November 17, 2003, Collins, J.).

A cause of action for false imprisonment accrues on the date that the imprisonment ends.
[False imprisonment] is a continuing [tort] (i.e., it continues throughout the period of restraint and thus, while it technically first accrues at the initial moment of restraint, such as upon arrest, it becomes complete at the end of the restraint, such as on release from custody. This latter date is the date of accrual for Statute of Limitations purposes.
(Karen v State of New York, 111 Misc 2d 396 [Ct Cl 1981] [citations omitted]; see also 59 N.Y. Jur. 2d False Imprisonment and Malicious Prosecution § 118, Whitmore v City of New York, 80 AD2d 638, 639 [2d Dept 1981] and cases cited.) The same rule of accrual applies to the related cause of action for wrongful confinement, because, as with false imprisonment, "the relevant facts could not be known and the extent of the injury could not be ascertained until claimant's release" (Ramirez v State of New York, 171 Misc 2d 677, 680 [Ct Cl 1997]).

Accordingly, claimant's cause of action accrued on February 20, 2001 and the subsequent notice of intention and claim were timely. Defendant's motion is denied and the answer's third affirmative defense is stricken.

June 16, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, with annexed affidavit of Dawn Phenes, each with supporting Exhibits

2. Notice of Opposition of Bernard Thomas, pro se

3. Letter response of Kathleen M. Resnick, Esq., AAG

4. Letter response of Bernard Thomas, pro se

Filed papers: Claim; Answer

[1] The affidavit of Dawn Phenes, a DOCS employee, indicates that the "effective date" of claimant's transfer, or the date on which the transfer was begun, was the earlier date, Februrary 20, 2001 (Phenes affidavit and Exhibit 1).
[2] If it were necessary to do so, the Court would accept his submission as a cross-motion for permission to late file despite this statement. That submission is most naturally read as a motion for such relief, and in fact claimant states so expressly in paragraph 8 of his affidavit: "The claimant has a acceptable/reasonable excuse as to why his claim was filed late. Pursuant to Court of Claims Act §10(6)...." Although claimant did not properly submit a notice of motion and submitted what appears to be an affirmation, rather than an affidavit (see CPLR 2106), papers submitted by pro se litigants are to be given liberal and broad interpretation (Di Nezza v Credit Data of Hudson Val., 166 AD2d 768 [3d Dept 1990]), and minor pleading defects may be ignored (CPLR 3026; Salahuddin v LeFevre, 137 AD2d 937 [3d Dept 1988]). Claimant did comply with the statutory requirement that he submit a proposed claim by attaching a copy of the claim already filed (Thomas affirmation, Exhibit A).